Volume 37, Number 3

NEW GROUPS AND OLD DOCTRINE: RETHINKING CONGRESSIONAL POWER TO ENFORCE THE EQUAL PROTECTION CLAUSE

William D. Araiza

This Article considers the Supreme Court’s current approach to judicial review of federal legislation enforcing the Equal Protection Clause. It starts from the assumption that the Court will not abandon the judicial supremacy principle it expressed in City of Boerne v. Flores; thus, any approach to congressional enforcement power must accommodate that supremacy. The Article begins by critiquing the Court’s current understanding of Boerne, and explaining how new and pending enforcement legislation pose major challenges under that doctrine. It then sketches a theory of the enforcement power which requires Congress to abide by judicial statements of constitutional meaning, but where judicial opinions are read more carefully to distinguish between true statements of constitutional law and subconstitutional decision rules. Congressional enforcement power must not conflict with the former. In addition, to the extent those statements are vague or general, they nevertheless channel congressional enforcement discretion by pointing to follow-on inquiries that Congress must satisfactorily answer in order for the Court to uphold its legislation. The Article then applies this new approach to three new pieces of equality legislation that are either currently in force or under consideration: the Employment Non-Discrimination Act, employment protection for transgendered people, and the Genetic Information Nondiscrimination Act. This application illustrates the theory in action. It also allows us to draw more general conclusions about the theory’s workability and appropriateness as a tool for reviewing future enforcement legislation, both under the Equal Protection Clause and other components of the Fourteenth Amendment.Read Article

The concept “criminal responsibility” plays an important role in Anglo-American criminal law. It is central to our excuse doctrines and provides a foundation for our punishment practices. Nevertheless, legal theorists and philosophers have sometimes argued that it is not appropriate to treat human wrongdoers as responsible actors. An important line of such challenges has been grounded in the behavioral sciences. Inspired by startling findings in psychology, sociology, criminology, neuropsychology, and other behavioral sciences, some theorists and philosophers have argued that these sciences show (or at least imply) that human acts are determined acts, that we therefore do not have free will, and that it is therefore wrong to hold us responsible for what we do.

While this behavioral science challenge could have radical implications for the criminal law, several influential criminal theorists have offered forceful arguments to rebut it. In doing so, they have drawn on the philosophical debates about free will, determinism, and moral responsibility. In particular, they have advocated the philosophical position known as compatibilism, according to which determinism does not destroy individual responsibility. If compatibilism is correct, they argue, then determinism is not antithetical to responsibility, and we therefore need not worry about the implications of determinism we find in the behavioral sciences.Read Article

FORCED SALE RISK: CLASS, RACE, AND THE “DOUBLE DISCOUNT”

Thomas W. Mitchell, Stephen Malpezzi, Richard K. Green

What impact does a forced sale have upon a property owner’s wealth? And do certain characteristics of a property owner—such as whether they are rich or poor or whether they are black or white—tend to affect the price yielded at a forced sale? This Article addresses arguments made by some courts and legal scholars who have claimed that certain types of forced sales result in wealth-maximizing, economic efficiencies. The Article addresses such economic arguments by returning to first principles and reviewing the distinction between sales conducted under fair market value conditions and sales conducted under forced sale conditions. This analysis makes it clear that forced sales of real or personal property are conducted under conditions that are rarely likely to yield market value prices. In addition, the Article addresses the fact that judges and legal scholars often have utilized a flawed economic analysis in assessing the economic impact of forced sales in cases involving property owned by low- to middle-class property owners. In contrast, those who are wealthier are much more likely to own their property under more stable ownership structures or to utilize private ordering to avoid the chance that a court might order a forced sale under the default rules of certain common ownership structures. The Article also raises the possibility that the sales price for property sold at a forced sale may be affected by a property owner’s race or ethnicity, resulting in a “double discount,” i.e. a discount from market value for the forced sale and a further discount attributable to the race of the property owner. If minorities are more susceptible to forced sales of their property than white property owners or if there exists a phenomenon in which minorities suffer a double discount upon the sale of their property at a forced sale, then forced sales of minority-owned property could be contributing to persistent and yawning racial wealth gaps.Read Article

IMPLICIT BIAS, ELECTION ‘08, AND THE MYTH OF A POST-RACIAL AMERICA

Gregory S. Parks, Jeffrey J. Rachlinski

The election of Barack Obama as the forty-fourth President of the United States signals that the traditional modes of thinking about race in America are outdated. Commentators and pundits have begun to suggest that the election of a black man to the nation’s highest office means that the United States has entered a post-racial era in which civil rights laws are becoming unnecessary. Although President Obama’s election means that explicit, open anti-black racism has largely faded, an analysis of the campaign’s rhetoric and themes suggests that unconscious racism is alive and well. Rather than suggest a retreat from traditional civil rights protections, the 2008 election calls for enhancing and maintaining efforts to ensure that civil rights laws address less virulent, but persistent, forms of racism that persist in America today.Read Article

JUST FEE SHIFTING

Issachar Rosen-Zvi

Equal justice in present-day America is a myth. Millions are essentially blocked from accessing the civil justice system. A central factor in this predicament is the fees charged by attorneys, whose prohibitive rates prevent many Americans from asserting their legal rights. In order to ensure equal justice, it is, therefore, essential that measures be devised to counteract the effect of attorney fees on access to justice for low- and average-income individuals. While the civil justice system offers a variety of mechanisms designed to offset the effect of wealth disparities on access to justice (such as legal aid, fee-shifting statutes, and contingency fee arrangements), even when taken together, they are far from a sufficient remedy for the system’s ills.Read Article

Confidential sources serve a key role in private securities fraud litigation, meritorious and otherwise. Allowing plaintiffs to withhold a source’s identity at the pleading stage allows insiders to expose securities fraud without fear of reprisal.1 At the same time, a fabricated confidential source stands as a tempting shortcut for the plaintiff who hopes to bypass the heightened pleading requirements of the Private Securities Litigation Reform Act (PSLRA)2 and “use discovery merely as a fishing expedition in the hope that something will turn up.”Read Article